In Re: Baldwin County Planning And Zoning Commission
Decision Date | 22 October 2010 |
Docket Number | 1091042,OCTOBER TERM, 2010-2011 |
Parties | In re: Baldwin County Planning and Zoning Commission, v. Montrose Ecor Rouge, L.L.C. |
Court | Alabama Supreme Court |
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Ex parte Baldwin County Planning and Zoning Commission.
(Baldwin Circuit Court, CV-08-900122; Court of Civil Appeals, 2080276)
The Baldwin County Planning and Zoning Commission ("the Commission") sought certiorari review of an opinion of the Court of Civil Appeals, upholding the trial court's issuance of a writ of mandamus sought by Montrose Ecor Rouge, L.L.C. ("Montrose"), to compel the Commission to grant Montrose's application for a proposed residential subdivision. We reverse and remand.
Baldwin County, _ _ _ So. 3d at _ _ _ (emphasis added).
In addition to these FEMA ratings, the parcel is subject to the Subdivision Regulations of Baldwin County ("the regulations"), which were adopted by the Baldwin County Commission pursuant to Ala. Code 1975, §§ 11-19-1 to-24, and Ala. Code 1975, §§ 11-24-1 to-7. The regulations "governeach and every subdivision of land in all unincorporated areas of Baldwin County." Reg. § 2.2.
In November 2007, Montrose sought the Commission's preliminary-plat approval for the subdivision and development of the parcel for residential purposes. The plat contemplated the construction of a roadway, which would serve as the sole means of ingress and egress for the bay lots. Although the road was to be elevated according to the specifications set forth Reg. § 5.3.18, 1 non-native fill material was to be imported to the site to serve as the roadway bed.
On January 17, 2008, at a Commission meeting ("the meeting"), Montrose presented its plat for approval. At the meeting, Baldwin County permit engineer, Gregory Smith, reported to the commissioners that the plat satisfied the "black and white technical requirements" for submission. Nevertheless, there was subsequent discussion at the meeting regarding the elevations of the roadway and the bay lots, and the susceptibility of the bay lots to flooding, particularly during landfalling tropical cyclones. A number of residents of the neighborhood in which the parcel was located attended the meeting. One or two of them presented photographs showing that the bay lots or adjacent areas had been thoroughly inundated twice in 2005 by two tropical cyclones of widely disparate intensity. Ultimately, the Commission denied approval of the plat on the ground that the plat failed to conform to certain of the regulations, including Reg. §§ 1.2.2, 5.1, and 5.2.2, inasmuch as the bay lots lie "in an area prone to severe flooding." Those sections provide:
(Emphasis added.)
Montrose subsequently petitioned the Baldwin Circuit Court for a writ of mandamus directing the Commission to vacate its denial; to declare §§ 1.2.2., 5.1, and 5.2.2 unenforceable because, Montrose argued, the provisions are unconstitutionally vague; and to approve the preliminary plat. It also sought compensatory damages for alleged "lost profits, lost opportunity for the sale of subdivided lots, a decrease in market value, increased interest charges, [and] additional engineering costs." The trial court denied Montrose's request for damages, but, citing Smith v. City of Mobile, 374 So. 2d 305 (Ala. 1979), granted the petition in all other respects. The Commission appealed to the Court of Civil Appeals, and Montrose cross-appealed on the issue of damages.
In a plurality opinion outlined by Judge Bryan and joined by Judge Pittman, the Court of Civil Appeals, also citing Smith v. City of Mobile, affirmed the trial court's issuance of the writ of mandamus. Judge Bryan's opinion held:
Baldwin County Planning & Zoning Comm'n, _ _ _ So. 3d at _ _ _ (emphasis added). However, on the cross-appeal, the Court of Civil Appeals reversed the damages portion of the judgment and "remand[ed] the action for the circuit court to determine the amount of damages [Montrose] is entitled to recover." Baldwin County Planning & Zoning Comm'n, ___So. 3d at _ _ _. As its sole authority for Montrose's recovery of damages, the plurality cited Town of Gulf Shores v. Lamar Advertising of Mobile, Inc., 518 So. 2d 1259 (Ala. 1987). The Commission sought certiorari review of both aspects of the plurality opinion. We granted the petition to consider (1) whether the plurality opinion of the Court of Civil Appeals conflicts with our precedent concerning the standard of review in a case such as this, and (2) whether Lamar Advertising should be overruled.
The broad, substantive issue, as...
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